2018 P L C (C.S.) 99
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Ejaz Swati, JJ
MAZHAR ILYAS NAGI and others
Versus
GOVERNOR, STATE BANK OF PAKISTAN and others
C.Ps. Nos.690 and 692 of 2006, decided on 11th September, 2017.
State Bank of Pakistan Act (XXXII of 1956) ---
----S. 54, Chap. IV [Ss.17 to 40] ---State Bank of Pakistan Staff Regulations (IX of 1999),
Regln.34---Constitution of Pakistan, 1973, Art.199---Constitutional petition ---
Maintainability ---Embezzlement of Bank money ---Impo sition of penalty of permanent
deduction of amount from the monthly salary of petitioner/Bank officer ---Non-production of
defence witness of petitioner before inquiry officer ---Contributory negligence ---Scope ---
Petitioner contended that his case was at par with other officers who were exonerated and that
inquiry officer had assured him that there was no incriminating material against him, hence,
there was no need to lead defence ---Validity ---Question which fell for consideration was as
to whether Bank fell within the definition of the State or authority under the control of
Government and its Rules were statutory or otherwise and whether the Bank was a "person" within the meaning of Art.199(1)(a)(ii) read with Art.199(5) of the Constitution---State Bank of Pakistan, a body corporate was established under State Bank of Pakistan Act of 1956---
Bank in question was entrusted with numerous functions with the affairs of the Federation, as well as the Provinces as enumerated in Chap.IV of State Bank of Pakistan Act , 1956---
Legislature under S.54(2)(J) of State Bank of Pakistan Act, 1956 delegated power to the Central Board of the said Bank to make regulation consistent with the Act provided for the recruitment of the officers ---Terms and conditions of service of employees/officers of the
Bank were governed by the State Bank of Pakistan Staff Regulations, 1999 though said staff regulations were non- statutory, however, the employee claimed that he had not been provided
equal treatment between similarly placed employees ---Record revealed that the
petitioner(employee) was rendering meritorious services diligently to the Bank since 1975 when the incident of 1994 was unearthed wherein the main accused the then Chief Manager absconded and was found responsible for entire def alcation/wilful embezzlement including
several charges ---High ranking Executive of the Bank was appointed as Inquiry Officer who
found the then Chief Manager responsible for unearthed defalcation/embezzlement ---
Findings of Inquiry Officer showed that prior to inquiry proceedings an evasive and
unspecified charge sheet was issued to the petitioner, which was replied by the petitioner but, contrary to the request of petitioner, the witnesses of petitioner were not summoned by the Inquiry officer without assig ning any plausible reasons rather the petitioner was assured by
the Inquiry Officer that no tangible incriminating evidence was available by the prosecution against him, as such, there was no need for the petitioner to lead such defence ---While
concluding the inquiry proceedings on such vague assurance to the petitioner, the Inquiry
Officer recommended for imposition of major penalty to the petitioner by imposing reduction of Rs.2500/ - from his salary, permanent reduction as well as imposition of non- paymen t of
back benefits to the petitioner --- Director Personnel though was competent to impose such
penalty to the petitioner but the same was harsh, since no findings were recorded by the
Inquiry Officer with regard to the financial loss caused to the Bank by the act of petitioner ---
Merely on the basis of contributory negligence and without determination of responsibility of each officer penalty was unjustified ---Petitioner was deprived of opportunity to produce his
defence evidence being condemned unheard and discriminated as the case of other four employees/officers co -accused, similarly placed, on identical charge were exonerated and
their absence from duty including their suspension was treated as period spent on duty ---High
Court set aside impugned penalty declaring the same as void ab initio --- Constitutional
petition was allowed accordingly.
Nemo for Petitioner.
Muhammad Riaz Ahmed for Respondents.
Date of hearing: 23rd August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. --- This common judgment disposes of C.P No.690 of
2006 and C.P No.692 of 2006 filed by the petitioner Mazhar Ilyas Nagi against the respondents assailing the impugned orders pertaining to the same subject of his service rendered with the respondents, wherein almost claim for same relief on the same cause of action.
C.P No.690 of 2006 containing the following prayers clause:
"In view of the submission made hereinabove, it is humbly prayed that this honourable Court may be pleased to: -
(1) Set aside the impugned original order i.e. letter No.PD.(H RD-6) F -
26(Q)5572/99 dated 31st August, 1999 (Annexure 'M'), resulting in imposition of Rs.2500/ - permanent reduction in salary; and the appellate order (Annexure
'S') whereby departmental appeal was rejected;
(2) Declare that the aforementioned orders are illegal, mala fide, void, whimsical,
capricious, arbitrary, in excess of jurisdiction or colourable exercise of jurisdiction, without lawful authority and of no legal effect; and
(3) Direct the respondents to pay all the back benefits to Petitioner for the period
during which he was prevented to serve the Bank for no fault of his own i.e. w.e.f. 25- 10-1995 (due from which Petitioner was placed under suspension) to
22-03-1999 (the date of reinstatement in service) including the amount
deducted from his sala ry due to operation of the impugned order till date of
retirement from service.
(4) Grant any other relief to which the petitioner is found entitled or which is
deemed just and proper by this Hon'ble Court in the facts and circumstances of the case.
(5) Award special costs under section 35 -A, C.P.C, 1908, as amended by the
Civil Law Reforms Act, 1994 (PLD 1995 Central Statutes 10) in view of
respondents' mala fide acts of entangling the Petitioner in unnecessary litigation, subjecting him to harassment and causing material loss in terms of money, time and energy.
While the C.P No.692 of 2006 containing the following prayer clause:
"In view of the submission made here -in-before, it is humbly prayed that this
honourable Court may be pleased to:
(1) Set aside. original order i.e. letter No. Staff 5775/30- 2001 dated 20th October,
2001 (Annexure 'A') and appellate order (Annexure 'C'):
(2) Declare,.....
(a) that the impugned original order i.e. letter No.Staff.5775/30- 2001 dated 20th
October, 2001 (Annexure `A') and appellate order (Annexure 'C'), being
violative of relevant Regulations, are illegal, mala fide, void, whimsical, capricious, arbitrary, in excess of jurisdiction or colourable exercise of jurisdiction and without lawful authority;
(b) that the R egulation 34 (iv) of State Bank of Pakistan (Staff) Regulations, 1999
(replacing Regulation 37 (iv) of the Regulations of 1993) read with Office
Order No.02 dated the 3rd January, 2000 (of Central Directorate's Letter
No.PD.51/Reg.21(i) -99 dated 18- 12-1999 ) [Annexure 'E'], in pari materia
WITH Fundamental Rule 53(b) since declared as repugnant to injunctions of Islam, to the extent that it provides for grant of subsistence allowance to suspended employees, is ultra vires of Articles 2- A, 4, 25, 190 and 227( 1) of
the Constitution of Islamic Republic of Pakistan (1973) and said Regulation has ceased to have effect, from the very date of making of said Regulations, being inconsistent with authoritative verdict given by honourable Supreme Court in the case repor ted in PLD 1994 SC 72.
(3) Direct the respondents ..
(a) that the period for which petitioner remained absent from duty for no fault attributable to him due to suspension and dismissal from service (from 25 -10-
1995 to 23- 03-1999), followed by reinstatement in service and regularized by
the appropriate) authority, may be counted for the purpose of calculating total qualifying service towards Pensionary/ Retirement Benefits;
(b) that the arrears may be paid to Petitioner by re- calculating the
Pensionary/ Reti rement Benefits in terms of above;
(c) to act in aid of Supreme Court as mandated by Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan (1973), to honourable Supreme Court of Pakistan' verdict given in the case of I.A. Sherwani (PLD 1994 SC 72) and to pay to Petitioner full salary with all admissible benefits for the period during which he was placed under suspension (25- 10-1995 to 17- 09-
1996);
(4) GRANT any other relief to which the Petitioner is found entitled or which is
deemed just and proper by this Hon'ble Court in the facts and circumstances of
the case; and
(5) AWARD the costs under section 35 -A, C.P.C, 1908, as amended by the Civil
Law Reforms Act, 1994, (PLD 1995 Central Statutes 1) in view of
respondents' mala fide acts of en tangling the Petitioner in unnecessary
litigation, subjecting him to harassment and causing material loss in terms of money, time and energy"
2. It is the case of petitioner that he joined the bank as Coin Note Examiner in Grade -II
on 18th September 1975 t hereafter he was promoted as Coin Note Examiner Grade- I
Assistant Treasurer ( Officer in Grade- III) and in Treasury Office in Grade- II. It is further
submitted by the petitioner that he had been rendering meritorious services with diligently, efficiently and honestly, when in the year 1994 an unfortunate incident of defalcation was
unearthed at Quetta Office of the respondent's bank, the then Chief Manager of the Quetta
office Mr. Abdul Qayyum Baig soon after the unearthing the case, absconded. He was
charg ed with willful embezzlement/defalcation and several charge sheets were issued to him.
He further submitted that high rank executive of Bank Mr. Allahuddin was appointed as
Inquiry Officer and notices have been published in the national newspaper directing the then
Chief Manager Abdul Qayyum for appearance, however, he failed to appear, as such, ex parte
proceedings were initiated against him in the light of available evidence and as a result whereof he was dismissed from service.
3. It has further been ave rred in the petition that a departmental inquiry was also
proceeded against the petitioner along with twenty other Officers of Bank, which were culminated in arbitrary infliction of major penalty of dismissal from service vide office order PD-206 dated 18t h September 1996 purportedly passed under Regulation 37 of Regulation of
1993. The petitioner filed departmental as well as Constitution Petition against his dismissal before the competent forum as well as before the Federal Service Tribunal and this Court too.
As a result whereof the petitioner approached the Hon'ble Supreme Court of Pakistan consequent upon dismissal of respondent the service of the petitioner was reinstated by the Hon'ble Supreme Court of Pakistan by virtue of option of conducting de -novo inquiry, he was
proceeded against departmental inquiry afresh. A copy of previous charge sheet was served upon the petitioner, which was accordingly replied and charges were again denied
vehemently. The petitioner was advised in charge sheet to provide a list of defence witnesses
he desires so to examine in rebuttal of charge. The petitioner accordingly annexed the reply of charge sheet a list of defence witnesses, which he desire to examine in his defence. The evidence of said defence witnesses was of material importance for petitioner to prove his innocence, but despite several requests the Inquiry Officer was reluctant to summon the defence witnesses of the petitioner. As a result whereof the petitioner was assured by the Inquiry Officer that since no i ncriminating evidence was brought against him by the
department, as such, the defence witnesses would not be necessary to be summoned.
4. The inquiry officer commenced inquiry proceedings on 17th June, 1999 an expert
prosecution witness Mr. Muhammad Akmal, Deputy Chief Manger, State Bank of Pakistan
(Prize Bonds) Bolton Market Karachi was examined in support of charge. He submitted his
written statement in support of charge, whereafter petitioner cross -examined him in light of
express provision of procedure and facts available on the face of record. Credibility of PW -1
produced against the petitioner was impeached through cross -examination and he was
completely shaken from his statement. Though the petitioner was intended to produce his
defence witnesses, bu t the Inquiry Officer shown his inability to summon the defence
witnesses by stating that due to prosecution's failure to make out a case against him and establish the charge on tangible evidence there is no need to proceed further and lead such defence ev idence. In spite of such assurance, petitioner recorded his objection in this regard
during the course of Inquiry and reserved his right to examine the witnesses in his defence. Having no alternative petitioner submitted his written arguments pressing into service the fact
of failure of prosecution to prove the charge and denial of Inquiry Officer to summon defence witnesses cited by the petitioner in the reply of the charge sheet.
5. On completion of inquiry proceeding penalty of permanent reduction of Rs.2500/ - in
petitioner salary was mechanically imposed on him by operation of impugned order i.e. letter No. PD (HRD- 6 F-2) (Q5572/99) dated 31st August 1999 passed by the Director Personnel
Department Central Director of Bank i.e. respondent No.4. Purportedly in exercise of powers
conferred by Regulation 34 of the Regulation of the Act, 1999.
6. It is further submitted by the petitioner that in the said impugned order back benefits
were also denied to the petitioner and in his absence from duty (due to opera tions of
provision dismissal order w.e.f. dated 18th September 1996 to 21st March, 1999 was
regularized by grant of leave due to him no order, However, was passed to regularize the period for which the petitioner kept under suspension i.e. 25th October 1995 to 17th September 1996 and the said period of absence was deemed to regularized by the office order 206, dated 18th September 1996, which had since been set aside by the judgment of Tribunal against which petition of the respondents was dismissed by the Hon'ble Supreme Court of Pakistan and leave to appeal was refused to them. It is further submitted by the petitioner that
before imposition of major penalty, neither any final show -cause notice was served on the
petitioner nor copy of inquiry report was supplied to enabling him to make representation against specific proposed /quantum of punishment in the light of finding of facts recorded by the Inquiry Officer. It is further submitted by the petitioner that four another co- accused i.e.
Mrs. Ali Ahmed, Sye d Imtiaz Hussain, Qamar Aziz and Syed Arif Hussain were also
proceeded against departmentally on identical charges, but they were discriminately exonerated of charge and their over three years absence from duty including their suspension period was treated as period spent on duty.
7. Being aggrieved from impugned order of infliction of penalty of Rs.2500/ - permanent
reduction in salary and denial to back benefit appellant under Regularization 35 of Regularizations preferred for departmental appeal based on good ground of law and facts, but
the respondents despite lapse of reasonable period did not dispose of the department appeal of the petitioner. The petitioner filed appeal before the Federal Service Tribunal under section 2-A, but the same appeal was dism issed in limine by the Tribunal without examining any
question of law, however, the petitioner assailed the said order before the Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court of Pakistan remanded the case of the petitioner to the Federal Service Tribunal Islamabad, which was remained pending for long
period of six (06) years on account of evasive attitude of respondents by seeking adjournment on one pretext or the other, however, after the pronouncement of judgment by the Hon'ble Supreme Court of Pakistan in case of Muhammad Mobin- us-Salam v. Federation of Pakistan
C.A. 792- 816 etc. decided on 27th June 2006 (PLD 2006 SC 602), which was declared the
law partially ultra -vires and in conflict of Articles 240 and 260 of Constitution of Islami c
Republic of Pakistan, as such, the jurisdiction of Federal Service Tribunal stood abated as intimated by Tribunal vide notice dated 30th June 2006.
8. Having no alternative efficacious remedy the petitioner filed this petition which is
pending since 2006 before this Court and was heard from time to time by the different
benches, but however, could not decide for the last so many hearings the learned counsel for
the petitioner despite service of notices failed to appear before this bench and finally we hav e
left with no option just to hear the arguments of other side and take the submissions of the petitioners mentioned in the memo. of petition as his arguments.
9. Mr. Muhammad Riaz Ahmed, learned counsel for the respondents almost relied upon
by the Para w ise comments filed by the respondents as well as further contended that the
petition of the petitioner is not maintainable in view of the preliminary legal objections taken
by the respondents in their Parawise comments. He further contended that the impugn ed
orders were passed after due process of law and the case was proved against the petitioner beyond doubt as per findings of inquiry report submitted by the Inquiry Officer. He further contended that the petitioner was also not entitled for back benefits in view of the
recommendations of the Inquiry Officer. He further contended that the competent authority
has already taken lenient view against the petitioner by imposing minor penalties upon the
petitioner in view of the findings of the Inquiry Officer, a s such, he does not deserve for relief
claimed for.
10. We have heard learned counsel for the respondents and also gone through the
submissions made by the petitioner in the memo. of petition and also minutely perused the record. The first question which f alls for consideration is as to whether the respondent Bank
falls within the definition of the State, or authority under the control of Government and its rule are statutory or otherwise and whether respondent bank is a "person" within the meaning of Artic le 199(I)(a)(ii) read with Article 199(5) of the Constitution. State Bank of Pakistan a
body corporate was established under the State Bank of Pakistan Act, 1956 (XXXIII of 1956) (hereinafter referred as the Act of 1956). The Bank has been entrusted numerous functions with the affair of the Federation, as well as the province as enumerated in Chapter IV of the Act 1956. The legislature under section 54(2)(J) of the Act of 1956 delegated power to the Central Board of the Bank to make regulation consistent wi th the Act provided for the
recruitment of the officer. The terms and condition of service of employees/officer of the Bank are governed by the State Bank of Pakistan Staff Regulation 1999 though the afore referred staff regulation are non -statutory , howe ver, the petitioner claimed that he had not
provided equal treatment between similarly placed employee and on the violation of his fundamental right, this petition is maintainable under Article 199(I)(C) of the Constitution of Islamic Republic of Pakistan 1973 and in the circumstances instant petition is maintainable for enforcement of his fundamental right and he also has no alternate remedy for the same. Reference is placed on Human Right Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507, Khyber Zaman and others v. Governor State Bank of Pakistan Karachi and others 2005 SCMR 235 and Pakistan Defence Officers Housing Authority and others v. Lt: Col: Syed Jawad Ahmed 2013 SCMR 1707. On merit the record of the instant pe tition reveals that the petitioner was rendering meritorious services diligently
in the bank of respondents w.e.f. 1975 to the unfortunate incident of 1994 was unearthed at Quetta office wherein the main accused the then Chief Manager namely Abdul Qayyum B aig
was absconded and he was found responsible for entire defalcation/willful embezzlement including several charge and high rank executive of the bank appointed as Inquiry Officer and held responsible the then Chief Manager Mr. Abdul Qayyum Baig for unear thed
defalcation/ embezzlement.
11. We have also gone through the findings of Inquiry Officer, it is pertinent to mention
here that prior to inquiry proceedings an evasive and unspecified charge sheet was issued to
the petitioner, which was replied by the petitioner satisfactorily, but during the course of inquiry proceedings, the respondents given fair and sufficient opportunities of producing witnesses against the petitioner, but however in contrary the witnesses of petitioner were not summoned by the Inquiry officer without assigning any plausible reasons and on the other
hand, the petitioner was assured by the Inquiry Officer that no tangible incriminating evidence available by the prosecution against him, as such, there is no need for the petitioner
to lead such defence evidence. While concluding the inquiry proceeding on such vague assurance to the petitioner, the Inquiry Officer recommended for imposition of major penalty to the petitioner by imposing reduction of Rs.2500/ - from his salary permanen t as well as
imposition of non- paying of back benefit to the petitioner.
12. Though the petitioner raised objection on the jurisdiction of the Director Personnel i.e.
respondent No.4 for imposing such penalties in view of disciplinary proceeding against an
officer of petitioner's grade. Be that as it may, in our view if at all it be presumed that the
respondent No.4 being Director Personnel was competent to impose such penalties over the
petitioner, but however, imposition of such major penalty is very hars h, since no findings
were made by the Inquiry Officer with regard to the financial loss being arised to the
respondents by act of petitioner, as such, merely on the basis of contributory negligence and
without determination of responsibility of each office r major penalty was unjustified.
Besides, the petitioner was deprived from opportunities to produce his defence evidence being condemned unheard (Audi Alterm Partem). He was also discriminated as the case of other four employees/officers co -accused namely (1) M/s. Ali Ahmed, (2) Syed Imtiaz
Hussain, (3) Qamar Aziz and (4) Syed Arif Hussain similarly placed employees on identical charge were exonerated of the charge and their over absence from duty including their
suspension was treated as period spent on duty. Their cases as stated above were at par with the case of petitioner and their financial benefits were released, but the petitioner was dealt with the different yardstick. No reason existed as to why case of the petitioner had been dealt differently, th erefore, petitioner is also entitle equality of treatment between similarly placed
employee. Reference to be made to case titled Kashif Zafar v. Post Master General and others 2013 SCMR 726.
14. In view of the above discussion, we are of the firm view that the penalty imposed
upon the petitioner is very unjustifiable his case is identical with the case of other four employees as referred above, as such, the impugned order dated 31st August, 1999 resulting imposition of Rs.2500/ - permanent reduction in the s alary of the petitioner is declared as void
ab inito and set -aside, as such, C.P. No.690 of 2006 is partly allowed and the respondents are
directed to refund the said deducted amount to the petitioner from the date of deduction till he was in service.
15. The respondents are further directed to pay the back benefit to the petitioner for
period during which he remained under suspension,
16. Since C.P No.690 of 2006 has borne fruit, while in C.P. No.692/2006 the petitioner
has almost sought the same relief, which was accorded to him in C.P No.690/2006, as such,
we have found no merits in the instant petition, which is accordingly dismissed. Parties are left to bear their own cost.
MQ/127/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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